Hustler Magazine

Hustler Magazine, Inc. v. Jerry Falwell

No. 86-1278

SUPREME COURT OF THE UNITED STATES

485 U.S. 46

Argued December 2, 1987

Decided February 24, 1988

Syllabus

Respondent, a nationally known minister and commentator on politics and public affairs, filed a

diversity action in Federal District Court against petitioners, a nationally circulated magazine and

its publisher, to recover damages for, inter alia, libel and intentional infliction of emotional distress

arising from the publication of an advertisement "parody" which, among other things, portrayed

respondent as having engaged in a drunken incestuous rendezvous with his mother in an outhouse.

The jury found against respondent on the libel claim, specifically finding that the parody could not

"reasonably be understood as describing actual facts . . . or events," but ruled in his favor on the

emotional distress claim, stating that he should be awarded compensatory and punitive damages.

The Court of Appeals affirmed, rejecting petitioners' contention that the "actual malice" standard

of New York Times Co. v. Sullivan, 376 U. S. 254, must be met before respondent can recover for

emotional distress. Rejecting as irrelevant the contention that, because the jury found that the

parody did not describe actual facts, the ad was an opinion protected by the First Amendment to

the Federal Constitution, the court ruled that the issue was whether the ad's publication was

sufficiently outrageous to constitute intentional infliction of emotional distress.

Held: In order to protect the free flow of ideas and opinions on matters of public interest and

concern, the First and Fourteenth Amendments prohibit public figures and public officials from

recovering damages for the tort of intentional infliction of emotional distress by reason of the

publication of a caricature such as the ad parody at issue without showing in addition that the

publication contains a false statement of fact which was made with "actual malice," i.e., with

knowledge that the statement was false or with reckless disregard as to whether or not it was true.

The State's interest in protecting public figures from emotional distress is not sufficient to deny

First Amendment protection to speech that is patently offensive and is intended to inflict

emotional injury when that speech could not reasonably have been interpreted as stating actual

facts about the public figure involved. Here, respondent is clearly a "public figure" for First

Amendment purposes, and the lower courts' finding that the ad parody was not reasonably

believable must be accepted. "Outrageousness" [47] in the area of political and social discourse

has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of

the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and

cannot, consistently with the First Amendment, form a basis for the award of damages for conduct

such as that involved here. Pp. 50-57.

797 F. 2d 1270, reversed.

REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, MARSHALL,

BLACKMUN, STEVENS, O'CONNOR, AND SCALIA, JJ., joined. WHITE, J., filed an opinion

concurring in the judgment, post, p. 57. KENNEDY, J., took no part in the consideration or

decision of the case.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry

Falwell, a nationally known minister who has been active as a commentator on politics and public

affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of

[48] privacy, libel, and intentional infliction of emotional distress. The District Court directed a

verdict against respondent on the privacy claim, and submitted the other two claims to a jury. The

jury found for petitioners on the defamation claim, but found for respondent on the claim for

intentional infliction of emotional distress and awarded damages. We now consider whether this

award is consistent with the First and Fourteenth Amendments of the United States Constitution.

The inside front cover of the November 1983 issue of Hustler Magazine featured a "parody" of an

advertisement for Campari Liqueur that contained the name and picture of respondent and was

entitled "Jerry Falwell talks about his first time." This parody was modeled after actual Campari

ads that included interviews with various celebrities about their "first times." Although it was

apparent by the end of each interview that this meant the first time they sampled Campari, the ads

clearly played on the sexual double entendre of the general subject of "first times." Copying the

form and layout of these Campari ads, Hustler's editors chose respondent as the featured celebrity

and drafted an alleged "interview" with him in which he states that his "first time" was during a

drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays

respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who

preaches only when he is drunk. In small print at the bottom of the page, the ad contains the

disclaimer, "ad parody--not to be taken seriously." The magazine's table of contents also lists the

ad as "Fiction; Ad and Personality Parody."

Soon after the November issue of Hustler became available to the public, respondent brought this

diversity action in the United States District Court for the Western District of Virginia against

Hustler Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co. Respondent stated in his

complaint that publication of the ad parody in Hustler entitled [49] him to recover damages for

libel, invasion of privacy, and intentional infliction of emotional distress. The case proceeded to

trial.[note 1] At the close of the evidence, the District Court granted a directed verdict for

petitioners on the invasion of privacy claim. The jury then found against respondent on the libel

claim, specifically finding that the ad parody could not "reasonably be understood as describing

actual facts about [respondent] or actual events in which [he] participated." App. to Pet. for Cert.

C1. The jury ruled for respondent on the intentional infliction of emotional distress claim,

however and stated that he should be awarded $100,000 in compensatory damages, as well as

$50,000 each in punitive damages from petitioners.[note 2] Petitioners' motion for judgment

notwithstanding the verdict was denied.

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment

against petitioners. Falwell v. Flynt, 797 F. 2d 1270 (CA4 1986). The court rejected petitioners'

argument that the "actual malice" standard of New York Times Co. v. Sullivan, 376 U. S. 254

(1964), must be met before respondent can recover for emotional distress. The court agreed that

because respondent is concededly a public figure, petitioners are "entitled to the same level of first

amendment protection in the claim for intentional infliction of emotional distress that they

received in [respondent's] claim for libel." 797 F. 2d, at 1274. But this does not mean that a literal

application of the actual malice rule is appropriate in the context of an emotional distress claim. In

the court's view, the New York Times decision emphasized the constitutional importance not of the

falsity of the statement or the defendant's disregard for the truth, but of the heightened level of

culpability embodied in the requirement of "knowing . . . or reckless" conduct. Here, the New

York [50] Times standard is satisfied by the state-law requirement, and the jury's finding, that the

defendants have acted intentionally or recklessly.[note 3] The Court of Appeals then went on to

reject the contention that because the jury found that the ad parody did not describe actual facts

about respondent, the ad was an opinion that is protected by the First Amendment. As the court put

it, this was "irrelevant," as the issue is "whether [the ad's] publication was sufficiently outrageous

to constitute intentional infliction of emotional distress." Id., at 1276.[note 4 ]Petitioners then filed

a petition for rehearing en banc, but this was denied by a divided court. Given the importance of

the constitutional issues involved, we granted certiorari. 480 U.S. 945 (1987).

This case presents us with a novel question involving First Amendment limitations upon a State's

authority to protect its citizens from the intentional infliction of emotional distress. We must

decide whether a public figure may recover damages for emotional harm caused by the publication

of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most.

Respondent would have us find that a State's interest in protecting public figures from emotional

distress is sufficient to deny First Amendment protection to speech that is patently offensive and is

intended to inflict emotional injury, even when that speech could not reasonably have been

interpreted as stating actual facts about the public figure involved. This we decline to do.

At the heart of the First Amendment is the recognition of the fundamental importance of the free

flow of ideas and opinions on matters of public interest and concern. "The [51] freedom to speak

one's mind is not only an aspect of individual liberty--and thus a good unto itself--but also is

essential to the common quest for truth and the vitality of society as a whole." Bose Corp. v.

Consumers Union of United States, Inc., 466 U. S. 485, 503-504 (1984). We have therefore been

particularly vigilant to ensure that individual expressions of ideas remain free from

governmentally imposed sanctions. The First Amendment recognizes no such thing as a "false"

idea. Gertz v. Robert Welch, Inc., 418 U. S. 323, 339 (1974). As Justice Holmes wrote, "When men

have realized that time has upset many fighting faiths, they may come to believe even more than

they believe the very foundations of their own conduct that the ultimate good desired is better

reached by free trade in ideas--that the best test of truth is the power of the thought to get itself

accepted in the competition of the market . . . ." Abrams v. United States, 250 U. S. 616, 630 (1919)

(dissenting opinion).

The sort of robust political debate encouraged by the First Amendment is bound to produce speech

that is critical of those who hold public office or those public figures who are "intimately involved

in the resolution of important public questions or, by reason of their fame, shape events in areas of

concern to society at large." Associated Press v. Walker decided with Curtis Publishing Co. v.

Butts, 388 U. S. 130, 164 (1967) (Warren, C.J., concurring in result). Justice Frankfurter put it

succinctly in Baumgartner v. United States, 322 U. S. 665, 673-674 (1944), when he said that "one

of the prerogatives of American citizenship is the right to criticize public men and measures."

Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as

public officials will be subject to "vehement, caustic, and sometimes unpleasantly sharp attacks,"

New York Times, supra, at 270. "The candidate who vaunts his spotless record and sterling

integrity cannot convincingly cry 'Foul!' when an opponent or an industrious reporter attempts [52]

to demonstrate the contrary." Monitor Patriot Co. v. Roy, 401 U. S. 265, 274 (1971).

Of course, this does not mean that any speech about a public figure is immune from sanction in

the form of damages. Since New York Times Co. v. Sullivan, supra, we have consistently ruled that

a public figure may hold a speaker liable for the damage to reputation caused by publication of a

defamatory falsehood, but only if the statement was made "with knowledge that it was false or

with reckless disregard of whether it was false or not." Id., at 279-280. False statements of fact are

particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas,

and they cause damage to an individual's reputation that cannot easily be repaired by

counterspeech, however persuasive or effective. See Gertz, 418 U. S., at 340, 344, n. 9. But even

though falsehoods have little value in and of themselves, they are "nevertheless inevitable in free

debate," id., at 340, and a rule that would impose strict liability on a publisher for false factual

assertions would have an undoubted "chilling" effect on speech relating to public figures that does

have constitutional value. "Freedoms of expression require " breathing space.'" Philadelphia

Newspapers, Inc. v. Hepps, 475 U. S. 767, 772 (1986) (quoting New York Times, 376 U. S., at 272).

This breathing space is provided by a constitutional rule that allows public figures to recover for

libel or defamation only when they can prove both that the statement was false and that the

statement was made with the requisite level of culpability.

Respondent argues, however, that a different standard should apply in this case because here the

State seeks to prevent not reputational damage, but the severe emotional distress suffered by the

person who is the subject of an offensive publication. Cf. Zacchini v. Scripps-Howard

Broadcasting Co., 433 U. S. 562 (1977) (ruling that the "actual malice" standard does not apply to

the tort of appropriation of a right of publicity). In respondent's view, and in the view of the [53]

Court of Appeals, so long as the utterance was intended to inflict emotional distress, was

outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import

whether the statement was a fact or an opinion, or whether it was true or false. It is the intent to

cause injury that is the gravamen of the tort, and the State's interest in preventing emotional harm

simply outweighs whatever interest a speaker may have in speech of this type.

Generally speaking the law does not regard the intent to inflict emotional distress as one which

should receive much solicitude, and it is quite understandable that most if not all jurisdictions have

chosen to make it civilly culpable where the conduct in question is sufficiently "outrageous." But

in the world of debate about public affairs, many things done with motives that are less than

admirable are protected by the First Amendment. In Garrison v. Louisiana, 379 U. S. 64 (1964),

we held that even when a speaker or writer is motivated by hatred or ill-will his expression was

protected by the First Amendment:

"Debate on public issues will not be uninhibited if the speaker must run the risk that it will be

proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly

believed contribute to the free interchange of ideas and the ascertainment of truth." Id., at 73.

Thus while such a bad motive may be deemed controlling for purposes of tort liability in other

areas of the law, we think the First Amendment prohibits such a result in the area of public debate

about public figures.

Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be

subjected to damages awards without any showing that their work falsely defamed its subject.

Webster's defines a caricature as "the deliberately distorted picturing or imitating of a person,

literary style, etc. by exaggerating features or mannerisms for satirical effect." Webster's New

Unabridged Twentieth [54] Century Dictionary of the English Language 275 (2d ed. 1979). The

appeal of the political cartoon or caricature is often based on exploration of unfortunate physical

traits or politically embarrassing events--an exploration often calculated to injure the feelings of

the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but

slashing and one-sided. One cartoonist expressed the nature of the art in these words:

"The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective

when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is

always controversial in some quarters." Long, The Political Cartoon: Journalism's Strongest

Weapon, The Quill, 56, 57 (Nov. 1962).

Several famous examples of this type of intentionally injurious speech were drawn by Thomas

Nast, probably the greatest American cartoonist to date, who was associated for many years during

the post-Civil War era with Harper's Weekly. In the pages of that publication Nast conducted a

graphic vendetta against William M. "Boss" Tweed and his corrupt associates in New York City's

"Tweed Ring." It has been described by one historian of the subject as "a sustained attack which in

its passion and effectiveness stands alone in the history of American graphic art." M. Keller, The

Art and Politics of Thomas Nast 177 (1968). Another writer explains that the success of the Nast

cartoon was achieved "because of the emotional impact of its presentation. It continuously goes

beyond the bounds of good taste and conventional manners." C. Press, The Political Cartoon 251

(1981).

Despite their sometimes caustic nature, from the early cartoon portraying George Washington as

an ass down to the present day, graphic depictions and satirical cartoons have played a prominent

role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's

characterization of presidential candidate James G. Blaine's banquet with the millionaires at

Delmonico's as "The Royal [55] Feast of Belshazzar," and numerous other efforts have

undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall,

gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and

cigarette holder have been memorialized by political cartoons with an effect that could not have

been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear

that our political discourse would have been considerably poorer without them.

Respondent contends, however, that the caricature in question here was so "outrageous" as to

distinguish it from more traditional political cartoons. There is no doubt that the caricature of

respondent and his mother published in Hustler is at best a distant cousin of the political cartoons

described above, and a rather poor relation at that. If it were possible by laying down a principled

standard to separate the one from the other, public discourse would probably suffer little or no

harm. But we doubt that there is any such standard, and we are quite sure that the pejorative

description " outrageous" does not supply one. "Outrageousness" in the area of political and social

discourse has an inherent subjectiveness about it which would allow a jury to impose liability on

the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular

expression. An "outrageousness" standard thus runs afoul of our longstanding refusal to allow

damages to be awarded because the speech in question may have an adverse emotional impact on

the audience. See NAACP v. Claiborne Hardware Co., 458 U. S. 886, 910 (1982) ("Speech does

not lose its protected character . . . simply because it may embarrass others or coerce them into

action"). And, as we stated in FCC v. Pacifica Foundation, 438 U. S. 726 (1978):

"[T]he fact that society may find speech offensive is not a sufficient reason for sup pressing it.

Indeed, if it is the speaker's opinion that gives offense, that con sequence is a reason for according

it constitutional protection. [56] For it is a central tenet of the First Amendment that the

government must remain neutral in the marketplace of ideas." Id., at 745-746.

See also Street v. New York, 394 U. S. 576, 592 (1969) ("It is firmly settled that . . . the public

expression of ideas may not be prohibited merely because the ideas are themselves offensive to

some of their hearers").

Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to

limitations. We recognized in Pacifica Foundation, that speech that is " vulgar,' offensive,' and

shocking'" is "not entitled to absolute constitutional protection under all circumstances." 438 U. S.,

at 747. In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), we held that a state could lawfully

punish an individual for the use of insulting " fighting' words--those which by their very utterance

inflict injury or tend to incite an immediate breach of the peace." Id., at 571-572. These limitations

are but recognition of the observation in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472

U. S. 749, 758 (1985), that this Court has "long recognized that not all speech is of equal First

Amendment importance." But the sort of expression involved in this case does not seem to us to

be governed by any exception to the general First Amendment principles stated above.

We conclude that public figures and public officials may not recover for the tort of intentional

infliction of emotional distress by reason of publications such as the one here at issue without

showing in addition that the publication contains a false statement of fact which was made with

"actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to

whether or not it was true. This is not merely a "blind application" of the New York Times standard,

see Time, Inc. v. Hill, 385 U. S. 374, 390 (1967), it reflects our considered judgment that such a

standard is necessary to give adequate "breathing space" to the freedoms protected by the First

Amendment. [57]

Here it is clear that respondent Falwell is a "public figure" for purposes of First Amendment

law.[note 5] The jury found against respondent on his libel claim when it decided that the Hustler

ad parody could not "reasonably be understood as describing actual facts about [respondent] or

actual events in which [he] participated." App. to Pet. for Cert. C1. The Court of Appeals

interpreted the jury's finding to be that the ad parody "was not reasonably believable," 797 F. 2d,

at 1278, and in accordance with our custom we accept this finding. Respondent is thus relegated to

his claim for damages awarded by the jury for the intentional infliction of emotional distress by

"outrageous" conduct. But for reasons heretofore stated this claim cannot, consistently with the

First Amendment, form a basis for the award of damages when the conduct in question is the

publication of a caricature such as the ad parody involved here. The judgment of the Court of

Appeals is accordingly Reversed.

JUSTICE KENNEDY took no part in the consideration or decision of this case.

JUSTICE WHITE, concurring in the judgment.

As I see it, the decision in New York Times v. Sullivan, 376 U. S. 254 (1964), has little to do with

this case, for here the jury found that the ad contained no assertion of fact. But I agree with the

Court that the judgment below, which penalized the publication of the parody, cannot be squared

with the First Amendment.